Opiate Use in the Veteran’s Administration System

According to the Veteran Administration over 440,000 veterans using the VA system were being prescribed an opioid-based medication in 2013 and over 55,000 had an opiate abuse disorder. The Veteran’s Administration serves approximately one third of the nation’s veterans per year—the remainder relying on private or other healthcare provider services. In some cases they may not have access to healthcare at all. According to the Center on Investigative Reporting (CIR) the overdose rate among veterans using the VA system from 2001-2012 was double the national average and prescriptions for opiates such as Hydrocodone, Oxycodone, Methadone and Morphine jumped by over 270% during the same period.  As a range of national media articles have indicated, a particularly lethal type of opiate is Oxycontin, a time-released form of Oxycodone. Similar to heroin in its chemical make-up, Oxycontin is very potent indeed and the risk of both accidental and intentional lethal overdose runs high.

Opiate Use in the State of New Mexico among Veterans

Overall, New Mexico has unfortunately been one of the national leaders in per capita opiate use, abuse and overdose. This lamentable statistical reality extends also to the veteran’s community in the State. The Center on Investigative Reporting (CIR) mentioned above give us some numbers on opiate use among veterans in our State. From 2001-2012, the Albuquerque VA healthcare system prescribed 95.8 opiate-based prescriptions for every 100 patients accessing services at the hospital. Of  683,645 patients, 654,903 opiate prescriptions were issued, placing the facility at the high-end for these medications by national standards.  Many veterans need pain medications, but they also require supervision, counseling in appropriate use and VA providers also need to engage in responsible prescription oversight. In 2014, a total of 285 New Mexicans died from opiate overdoses. If national statistics hold true in our State, a considerable percentage were probably veterans.

Responsible Use, Prevention and Intervention

There has been considerable research around the dangers of taking specific types of medication at the same time. For example, taking Benzodiazepines together with opiates can prove particularly deadly. Additional research indicates that veterans suffering from combat-related Post-Traumatic Stress Disorder (PTSD) are at higher risk for both intentional and accidental overdose. Many veterans develop an addiction to pain medications over time and complete cessation may prove very hazardous, even fatal. Veterans with a history of substance abuse involving opiates are of course at heightened risk for overdose either through illicit or licit use of opiates. The VA recognizes this and for that reason they are supposed to provide counseling on the use of Naloxone and make Naloxone kits available, when appropriate.

https://www.cbsnews.com/news/opioid-addiction-epidemic-in-6-charts/The opioid epidemic as seen in 6 charts – CBS News How the crisis started. Opioids are drugs that stimulate the brain’s opiate receptors. Some are made from opium and some are completely synthetic. In the U.S., the most commonly prescribed opioids are hydrocodone and oxycodone, which are classified as …



https://www.cbsnews.com/news/ex-dea-agent-opioid-crisis-fueled-by-drug-industry-and-congress/Ex-DEA agent: Opioid crisis fueled by drug industry and Congress – CBS News Now in a joint investigation by 60 Minutes and The Washington Post, Rannazzisi tells the inside story of how, he says, the opioid crisis was allowed to spread — aided by Congress, lobbyists, and a drug distribution industry that shipped, almost …Cannabis NowNewsdayFinancial Times



http://www.newsweek.com/va-opioid-crisis-killing-us-veterans-682402Opioid Crisis: Reckless Overprescribing of Antipsychotics is Killing Veterans – Newsweek The last time Janette Layne saw her husband alive, Sergeant Eric Layne was dozing on their couch with the TV on. That was in January 2008. Because of his mounting outbursts of rage and paranoia since returning from Iraq, psychiatrists at two VA …

Reckless VA Opiate and Benzo Prescription Practices Driving Epidemic of Addiction and Overdose DeathsThere is national epidemic of opiate and benzodiazepines addiction and wrongful death.  Much of this is driven by what can only be called reckless prescription practices by medical providers.

Unfortunately, the VA medical system leads the way with Veterans bearing a very high burden associated with these practices.

These practices when they lead to serious personal injury or wrongful death may give rise to VA medical malpractice claims.

 Early detection is key to breast cancer survival.  With early detection, the survival rate is close to 90%.  Delays in detection can be deadly.

How does this play out within the VA medical care system?

Veteran Administration Position on Early Detection

The VA takes a strong and medically rational position on early detection. In a post on the VA’s website, VA National Leader in Providing Mammograms, the VA states:

“Two very important words can save lives:
Early detection.
Women Veterans are encouraged to keep those two words in mind every month, not just in October during Breast Cancer Awareness Month.”

The post goes on to state:

“ The value of early detection is borne out by the statistics: The overall five-year survival rate from breast cancer is nearly 90 percent. If the cancer is caught while it is still confined to the breast, the survival rate increases to nearly 99 percent.”

VA Position v. Practices

The stated policy is inconsistent with the many findings of deliberate delay in treatment, falsified medical records and wait times, falsified refusals of mammograms, continuing long wait times, and on and on.

These practices have undoubtedly impacted the health and lives of many female veterans. After all, “early detection…saves lives”.

The delays themselves even in the absence of deliberate wrongdoing may constitute medical malpractice.  Deliberate delays and falsifications of records despite knowledge of risks to the patient with resulting harm most assuredly would.

Delay or Failure to Diagnose and Medical Malpractice Claims

Breast cancer may have varying progression rates depending upon the patient. However, early detection remains key. A 6 to 9 month delay is the minimum delay required for many medical malpractice attorneys, including Collins & Collins, P.C.

The evaluation of a medical malpractice claim for delayed diagnoses or failure to diagnose will depend on the individual patient and the medical records.  These evaluations take time so it is important to be proactive with your claims.

Gather the Medical Records ASAP

The first and most important step so far as a medical malpractice claims is concerned is to obtain all medical records from each medical provider that might be even remotely connected to the breast cancer. This should be done immediately while the patient is still able to do this on her own. There a numerous good reasons to do this:

1) The case cannot be evaluated by an attorney without them.

2) The case will eventually need to be evaluated by a medical expert which can take time to accomplish,

3) The statute of limitations is only 2 years on Federal Tort Claims Cases and the clock is ticking.

4) Delays in getting the medical records may result in the inability to obtain an attorney to even evaluate the case. Most attorneys are very reluctant to take cases on very short deadlines.

If the situation looks dire, then the patient should get a medical power of attorney in place so that these medical records may be obtained by a loved one in the event the patient becomes incapacitated. It can prove exceedingly difficult to get medical records once a patient is incapacitated due to HIPPA laws. The medical power of attorney should avoid this.

Many times, this is learned too late to do much about it. Under New Mexico law, a surviving loved one can be appointed personal representative under the New Mexico Wrongful Death Act. In fact, this will be necessary at some point anyway in order to pursue a medical malpractice claim on behalf of the decedent’s estate.

Contact an Attorney Right Away!

Medical malpractice cases are generally very difficult and expensive. As such, most attorneys must screen these very carefully. This requires a number of levels of review beginning with the first call to a lawyer.

The great majority of experienced medical malpractice attorneys will not simply file suit without a thorough evaluation and an expert medical review. If an attorney is willing to look at a case further, it can take quite some time to get through the case evaluation. All the while, the clock is ticking.

The Albuquerque attorneys at Collins & Collins, P.C. can be reached at (505) 242-5958

 There has been 70 years of judicial hand wringing following what has become a national disgrace in the aftermath of the 1950 Supreme Court decision of Feres v United States.  Feres itself suggested Congressional action to address the ambiguities in the Federal Tort Claims Act giving rise to its decision.

For over for over 70 years, Congress has done nothing while the courts despite the hand wringing have delivered one unjust and devastating decision after another. The country’s active military deserve better. Our military deserves basic patient rights but they have none. The scope and injustice of Feres is best illustrated by a very recent opinion from the 10th Circuit Court of Appeals

Most Recent Unjust and Absurd Outcome Resulting from  Feres

What would you say to this?

  • A Female Captain in the military goes in for routine childbirth.
  • Gross medical negligence with one inexcusable error after another results in oxygen deprivation to the child.
  • The negligent medical care results in very serious and permanent harm to the baby.
  • The case is dismissed immediately at summary judgment due to the 1950 Supreme Court opinion that has received near universal condemnation.

Is the mother/Captain entitled to answers on what happened and what went wrong? Should the baby receive fair compensation from the military for the horrible and permanent injuries resulting from the negligent medical care? If you said yes on either count, you would be wrong.

Why? Because apparently a routine childbirth in a military hospital somehow invokes chain of command and disciplinary issues.   Read on to appreciate the absurdity and injustice in the logic and the outcome.

The Root of Injustice to Servicemembers: Feres v. United States

The 1950 Supreme Court opinion in Feres v. United States set the stage for 75 years of injustice to our military.  The opinion states in short that the Federal Tort Claims Act which allows suits against the federal government does not allow suits against the military by active military personnel. There is in fact nothing in the Federal Tort Claims Act that would dictate that.

There are two primary bases for the decision, the expanse of Feres, and the continuing and accelerating denial of basic rights to servicemembers:

1. The court then and the courts today still view it as a chain of command/discipline issue.

2. The court also suggested that active military receive adequate compensation through military and veteran benefits which was as untrue then as it is today.

Chain of Command and Military Discipline is a Nonsensical Argument in Routine Medical Care

In the fact scenario set forth in the beginning, it would be difficult to come up with any logical basis for arguing that a routine pregnancy and delivery somehow invokes chain of command. Moreover, military doctors have absolutely nothing to do with military decisions. They are doctors there to serve military personnel with their medical needs. That is it.

The Feres Doctrine may make some sense in situations involving battlefield injuries and treatment. It makes no sense when dealing with routine medical care. There is no reason why military personnel should not expect competent medical care just as any other American has a right to do. Active military should have at least as many rights as other patients allowing them to seek answers and hold medical providers accountable for harm caused by medical malpractice just as any other patient.

Availability of Full Compensation Elsewhere Was a Flawed Argument in 1950 and Remains So Today

Feres likens the benefits to injured active military to workers’ compensation benefits. The suggestion is that these benefits are sufficient. The comparison is silly in routine medical care and never sillier than in the case in point.

To begin, workers’ compensation statutes are an atrocity in themselves with respect to worker rights. They are geared toward protecting negligent employers even in cases of gross negligene, not injured employees.

The same holds with the rationales underlying Feres. Workers’ Compensation benefits received are grossly inadequate to compensate a worker who has suffered serious injuries or the family when the worker is killed just as they are to military personnel seriously harmed by medical negligence.

More to the point however is the fact that under no workers’ compensation statute are negligent doctors protected from their own medical negligence. If they commit medical malpractice, they may be held responsible just as any other medical provider.

Hand Wringing by the Courts over the Years to Little Avail

The constant hand wringing by the courts is evidenced in a recent 10th Circuit Court of Appeals opinion. To gain the appropriate sense of outrage, one should read the opinion. The hypothetical set forth in the beginning is the factual situation addressed by the Court in that case.

Let’s begin with the quote that illustrates the rather impotent hand wringing of the courts: “Suffice it to say that when a court is forced to apply the Feres doctrine, it frequently does so with a degree of regret.”

The problem arises from the language in Feres regarding “incident to service.” Active military cannot file a claim or even learn what happened in medical malpractice cases which are “incident to service’. Remarkably, Feres did not itself define incident to service. It was rather one of those things that you know when you see.

From Feres and the reliance on incident to service, the courts have run wild basically finding that most anything, including childbirth, occurring during military service is incident to service. In fact the 10th itself in the end after all the remorse expressed over the injustice necessitated by Feres lets go the “incident to service” standard and embraces what might be construed as an even broader “service-related” standard.

From the service-related standard, they conclude that any injury derivative of military service , including child birth, is beyond the jurisction of the courts.  This reading and many others like it leaves military personnel with no hope for justice.

The Expansive Reach of Feres Covers Even Incidents with Remote Connections to Military Service

The 10th Circuit opinion cites another 10th Circuit case to illustrate the breadth of Feres as now construed:

“In recent years, the Supreme Court has broadened Feres to the point where it now encompasses, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military.”

Drawing from a 9th Circuit Court of Appeals decision in support of the unjust but necessary outcome quoting as follow:

“…we join the many panels of this Court that have criticized the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine’s original purposes.”

Congress Must Take Action to Protect Our Servicemembers

One footnote from the 10th Circuit case sums up the near universal condemnation of Feres over the years and the failure of Congress to remedy the injustice:  the “Feres doctrine has been criticized by ‘countless courts and commentators’ across the jurisprudential spectrum. . . . However, neither Congress nor the Supreme Court has seen fit to reverse course.”

Feres itself suggests that Congress should take action:

“There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy.

These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears.”

Demand Fairness and Justice for Military Personnel Harmed by Negligent Medical Care

Military personnel deserve basic patient rights. They deserve the right to answers. They deserve to be justly and fully compensated for harm caused by medical malpractice.

Congress holds the key as stated in Feres itself 75 years ago.  Congress has dodged the issue for long enough.

Tell Congress to act now. Join the petition or start your own at www.Change.org or Contact Congress Directly.

A good place to begin to honor Veterans take responsibility for the VA's systemic medical neglect.
A good place to begin to honor Veterans take responsibility for the VA’s systemic medical neglect.

Veterans Day is about honoring veterans.  All throughout the year, politicians of every stripe make claims to their unflinching support of veterans.  The chorus grows loudest on Veterans Day.

The reality is that veterans are largely mistreated at every turn, beginning with the agency charged with protecting them, the Veterans Administration.

Let’s start there if we really want to honor veterans.  After all protecting them from harm would be a good first step.

VA Medical System Neglect and Abuse

Over 1000 deaths during last decade related to VA medical negligence. Compare this to combat deaths over same period and the problem is even more shocking than the number itself.

Perhaps there is no greater illustration of the neglect that veterans face every day than the monumental systemic neglect of the VA Medical System.  The neglect has been ongoing for quite some time.

An oversight report from Sen. Tom Coburn, “Death, Delay & Dismay at the VA,” stated: “Over the past decade, more than 1,000 veterans may have died as a result of VA malfeasance…”

This is remarkable for so many reasons.  To begin, the numbers are pretty shocking when compared to actual combat deaths during the same period.  During roughly the same period, 2001-present, there have been about 5200 combat deaths in Iraq and Afghanistan.

Worse yet, the fatality rates do not begin to measure the true harm to veterans caused by the neglect.  It is fairly safe to assume that the number of veterans seriously harmed by VA medical negligence is exponentially higher than those killed.  Apparently, the VA has refused to provide those numbers.

Accountability Means Responsibility

Accountability means more than firing a few figureheads. Accountability means responsibility.  And that means full and fair compensation for harm.

The new secretary has now called for reform stating that there would be accountability.  How can there be accountability when the true scope of the problem remains unknown?

Accountability means more than firing a few figureheads.  Accountability means responsibility.  This means compensating veterans and their families for the injuries and wrongful deaths resulting from VA medical negligence.

It is a pretty safe bet to assume that the refusal to provide the data on injuries has not been turned over.  It is also safe to assume that the veterans and families harmed by VA negligence will not be informed of the errors nor any suggestions of fair compensation be made.

Taking Responsibility Means Informing the Veteran

This seems straightforward enough but it is far from it when it comes to VA policy, which shows no sign of changing despite all the rhetoric about change.  Sen. Coburn captures the problem of disclosure, the failure to take responsibility and the difficulty Veterans face in claims against the VA to hold it responsible:

“It is arguable that this malpractice tab could be higher if the VA was more forthcoming with its own negligence. Because the VA operates under a disclosure policy that informs patients when the hospital or doctors made a mistake, many claims may go unreported.  In other words, patients and families may never even know if something went wrong if the VA did not self-report it.”

Patient Safety Demands Disclosure Yet…

Despite calls for accountability, the system seems to remained geered toward avoiding any real responsibility for the harm caused to veterans and their families, which in all likelihood will lead to even more harm.

Why is it important that the veterans be notified of possible negligent medical care by the VA?  First and foremost, the veteran should know so that proper medically indicated remedial measures may be taken.

A good example of the problem is the issue of delayed/failed diagnosis, which is discussed in Sen. Coburn’s report.  Failure or delay in diagnosis is a problem in medical care.  A delay or failure to diagnose can have deadly consequences.  Very little imagination is needed to understand why.

Though failure or delays in diagnosis are common, the very nature of the VA’s systemic neglect of veterans suggest that the problem is far more pervasive there.  In addition, despite all the talk of reform, there has been little discussion of what to do about the actual patients who may, as we speak, be subject to possible harm from neglect.

Again, the calls for reform are certainly welcome but fall far short of actually compensating veterans.  After all, how can it possibly be suggested that the VA is taking responsibility when there is no doubt veterans out there now that are at risk from negligent failure to detect and diagnose illnesses?

The Discovery Rule

Veterans should not expect any assistance from the VA on the discovery front. Moreover, they should fully expect a fight on their hands regarding when the discovery rule applies.

The VA will be bound by New Mexico medical malpractice laws with regard to medical malpractice claims made against the Albuquerque VA Hospital.

The discovery rule is important because it means the statue of limitations, only 2 years on claims against the federal government including the VA, does not run until the negligence is or should have been discovered by the patient.

What this means is determined on a case-by-case basis.  However, it is again safe to assume that the veterans will not discover their injuries through voluntary disclosure by the VA Medical System.  What’s perhaps worse, and perhaps cynical (remains to be seen), is that once a veteran does discover harm resulting from negligence and decides to bring a medical malpractice claim, the VA Hospital does its best to convince a court that the discovery rule does not apply or that somehow the veteran should have known earlier or some other variation intended to escape responsibility for its negligence.

Once again, accountability requires responsibility and it remains to be seen if the VA intends to take responsibility for its neglect.  The history of the VA does not bode well for veterans harmed by VA medical negligence despite the enthusiastic cries of support that they will hear today.

According to the Associated Press (AP), the Department of Veteran Affairs has significantly increased the rate of referrals of veterans to private medical providers.

This is apparently in response to the lengthy wait times that veterans face in receiving medical care, and more precisely to the scandal associated with the falsification of records related to the wait times.

This is good news, but there was a lot that was not addressed.  There are some statements that are more alarming than reassuring.  In fact, it suggests pervasive and systemic medical malpractice in the VA Healthcare System.  It most certainly raises issues concerning violations of the duty of care under the New Mexico Medical Malpractice Act.

Recent Referrals to Private Doctors

The AP reports that the VA has made over 800,000 referrals to private doctors over the last 2 months.  Great, right?

So what was happening to those patients before these referrals were being made?  One particularly problematic issue raised by the article is the severe shortage of doctors at the VA.  Presumably, this would include a severe shortage of specialists.

Shortage of Doctors at the VA – Not Just Wait Times Implicated!

The new VA Secretary, Robert McDonald, threw out a couple of numbers on the shortage of healthcare workers at the VA.

He stated there that the Phoenix VA Hospital alone was short “1,000 new doctors, nurses and clerks” and the VA Hospital in Las Vegas was short another 500.  Project those numbers across the U.S. and these are monumental deficiencies.

And although one must give the new Secretary some acknowledgement for his efforts, these shortages far predate the present situation.  Moreover, Veterans and their families have suffered for years, if not decades, not just from long wait times but what must have been severely deficient care even for those lucky enough to get in to see a doctor.

Medical Provider’s Duty of Care Under New Mexico Law

These wait times and shortages bring up many issues suggesting medical negligence.  We will touch here on only the most glaring and obvious under New Mexico law, which would govern medical malpractice claims against the Albuquerque VA Hospital (which incidentally has been singled out with particularly serious issues, an honor seemingly difficult to achieve in a hospital system which many have characterized as systemically negligent).

Once one reviews the New Mexico Uniform Jury Instructions (UJI) on medical malpractice, it is quite clear why the VA Hospital system has been characterized as systemically negligent.

UJI §13-1101 – Duty of Doctor or Other Health Care Provider

This jury instruction addresses the most basic duty of care for healthcare providers.  The instruction states:

In treating, operating upon, making a diagnosis of, caring for a patient, the medical provider is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors or other health care provider practicing under similar circumstances… A doctor or other health care provider who fails to do so is negligent.

It seems pretty clear that no doctor would engage in some of the VA practices that have come to light.

UJI §13-1104B – Duty to Inform

This jury instruction seems particularly problematic for the VA Hospital in what likely will be a wave of medical malpractice lawsuits associated with its practices.

The jury instruction states that the doctor or medical provider has a “duty to communicate to the patient …  that information which a reasonably prudent patient under similar circumstances would need to know about:

1. the patient’s condition; [and]

2. the alternatives for treatment; [and]

3. the inherent and potential hazards of the proposed treatment; [and]

4. the likely result if the condition remains untreated.”

Chances are all of these were violated for many given patients.  Most certainly #4 was violated as apparently thousands of Veterans’ medical conditions were left untreated and it appears fairly evident that the discussion of the risk of failure to treat in a timely manner was not discussed with these Veterans.

UJI §13-1103 Duty to Inform Patient of Need for Another Doctor

This is where it starts getting very interesting.  Let’s begin with the fact that the VA Hospital has an annual in excess of $150 billion.  Yet, they maintained a staggering shortage of healthcare personnel and failed to make private referrals until the recent scandal.

The jury instruction is short and to the point:

If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.

As mentioned previously, the stated shortage of doctors suggests a comparable shortage of specialists.  This begs the question of where Veterans with serious medical conditions were being referred.  It gets to the essence of UJI §13-1103 and how VA doctors might have met this duty.

Did the doctors simply fail to indicate the need for specialized care or did they say you need it but you can’t have it?  There is not just a duty to inform of the need but to actually make the referral.  Without the actual referral, the communication of the need is rendered meaningless.

UJI §13-1102 Duty of Specialist

This jury instruction is equally important for the care of Veterans.  Unfortunately, it likely often did not come into play since the Veterans were not getting to the specialist in a timely manner if at all.

To keep it simple, a specialist has the duty:

 “To possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified specialists practicing under similar circumstances, giving due consideration to the locality involved. A doctor who fails to do so is negligent.”

Where the Rubber Meets the Road – Accountability for Harm to Veterans Caused by Medical Negligence

The real test of the new VA Secretary will be in the policies and practices implemented to compensate Veterans who have been harmed as a result of the systemic negligence in the VA Healthcare System.

This is where the rubber meets the road as they say.  Veterans and their families need to be compensated fairly for the injuries caused by VA negligence.

It remains to be seen whether this will be done.  However, if the past is any indicator, the posturing now is pure rhetoric and when it comes down to it, if left to the VA, the Veterans and their families will be left to carry the burden.

Seek Legal Guidance!

It seems almost self-evident that a Veteran should not take on the VA alone. This is never more true than in the case of a medical malpractice claim against the VA Hospital.

Medical malpractice claims are difficult under the best of circumstances.  Claims against the VA are far from the best of circumstances.  There are many unique rules and deadlines associated with claims against the VA Hospital.

These claims are governed by the Federal Tort Claims Act, which is premised (or would appear to be to those cynics among us) on the protection of the government, not the injured citizen.  Many would agree that this applies particularly to injured Veterans.

Seek the assistance of an experienced medical malpractice attorney as soon as possible after learning of harm that may have been caused by VA medical negligence to you or a loved one.

The 911 call, “We called our rapid response here at the hospital but unfortunately they won’t respond to him because he’s out of the main medical building … There’s a table of doctors sitting right next to him and none of them are doing s—”.  The VA hospital response, “Regardless of who was sitting at nearby tables , VA staff along with Kirtland AFB personnel immediately responded in providing basic life support to this Veteran. The staff were heroic in their attempts to save the life of this Veteran.”

Emergency Care Needed?  Please Contact Your Local Fire Department

A veteran goes into cardiac arrest at a VA Hospital facility.  No emergency response is forthcoming from the VA due to policy.  911 calls must be made to the Albuquerque Fire Department. The VA Hospital emergency room is a 5 minute walk and presumably even shorter by ambulance.  Albuquerque Fire Department’s closest location is one mile from the VA hospital.  According to witnesses, several doctors apparently sit eating in the canteen where this all occurs taking no action to save the veterans life.  Albuquerque Fire Department shows in a little over 10 minutes from the 911 call.  Despite the efforts of Albuquerque Fire Department EMT’s, the veteran dies.  A spokesman for the Veterans Hospital declares no wrongdoing, instead insisting that the VA staff “was heroic.”

Heroic! Really?

All of this was set forth in an article this morning from the Albuquerque Journal, 911 calls shed light on VA response.  The entire episode can be characterized no other way than disgusting and inexcusable.  It is hard to imagine how this does not amount to gross medical negligence.

Heroic?  Heroic?  This quote from the VA Hospital spokesman sums up everything (maybe not everything) that is wrong with the VA hospital and the entire VA hospital system.

The 911 recordings do indicate that nurses were trying to help the veteran.  Yet, it stands to reason that there were not a lot of treatment options in the cafeteria.  The nurses did do their job (as is often the case in medical negligence cases).  The VA Hospital system itself set this tragedy in motion with its policy of calling Albuquerque 911 for emergencies on their own medical premises.  It is hard to explain the doctors sitting idly nearby but giving them the benefit of the doubt, perhaps this too was a matter of VA Hospital policy.  Only time will tell assuming there is an adequate investigation which seems anything but certain.

The entire system from episodes like this to the secret waiting list and systemic negligence in the medical care of Veterans illustrates a callous arrogance and indifferent attitude to our nation’s veterans at the VA Hospital administrative level.

Arrogance and Indifference? 

On the same page with this article from the Albuquerque Journal was an article, NM lawmakers slam ABQ VA’s refusal to provide data.  The opening paragraph captures the gist of it:

“New Mexico’s congressional delegation is demanding answers from the Veterans Affairs Department after Albuquerque VA officials told congressional staffers this week that they must submit federal Freedom of Information Act requests to learn more about VA health care policies.”

While under Congressional investigation for their systemic neglect and incompetence, the VA is refusing to provide information to Congress!  The NM congressmen rightly point out that the VA hospital here—and presumably elsewhere—fail to appreciate the meaning of congressional oversight.

Congressional Oversight 

The disregard for veterans’ welfare is appalling.  The fact that the VA hospital would now try to obstruct a congressional investigation suggests not only a lack of respect for Congress, but also leads to the question of what are they hiding?

Recent press has reported that VA hospital facilities were destroying records following the disclosure of the secret waiting list.  Perhaps, the stalling of our congressman is simply another reflection of inefficiency and incompetence at the VA hospital where even the destruction and concealment of records cannot be accomplished in an orderly fashion.

Congressional Response 

The problems at the VA and the VA hospital system have been known for many years, arguably decades.  Every now and then the Congress will get riled up and voice disapproval and then very serious intent to fix the problems.  Curiously, it never happens.

The problems persist despite incredibly well documented problems at the VA.  Election cycles run and the voices die down.  In the meantime, our veterans are neglected, harmed and dying through this system-wide neglect.

Let’s see what happens this time, but I submit if you ask a veteran involved in the VA system, the response will be less than optimistic.  Of course, the veterans’ voices are rarely heard.

Attorneys Not Welcome Here 

Make no mistake that claims against the VA Hospital are difficult.  These are made more difficult by the severe limitations on attorney fees placed on these claims.

Medical malpractice claims are very hard and expensive.  This is so no matter whom the defendant.  They are no easier or cheaper when filed against the VA Hospital.  Unfortunately, many attorneys simply will not take these claims because of these limitations.

Of course this is by design. Presumably, the fee limitations are to protect the veteran.  This is far from reality since what the fee limitation does instead is discourage attorneys from taking these cases on to help veterans.

Do Not Give Up

This is what the VA hopes veterans will do.  The same holds true throughout the VA system from medical negligence claims to claims for veteran benefits.

Our veterans deserve better.  They have earned it.  Unfortunately, they must earn it time and time again even when they have returned home.

The bad news on medical care for our armed forces just keeps getting worse.  Following up on the revelations regarding extensive waiting times and secret waiting lists at the VA Hospital, a new investigation from the New York Times reveals some equally disturbing patterns of neglect at our military hospitals.

Findings of Systemic Neglect in Military Hospital Medical Care 

The New York Times investigation found the military hospital network was wrought with “persistent lapses in protecting patients.”  The investigation found further that  “scrutiny is sporadic and avoidable errors are chronic” in the military hospital network.

The investigation found that the system was particularly lacking in two critical areas of care, surgery and maternity care.   However, a number of the actual incidents of negligence noted in the report were related to diagnostic error, which plagues the non-military hospitals as well.

In any event, these findings are troubling in light of the fact that 1.6 million active-duty military are treated each year in these hospitals.  With higher than average rates of medical error and neglect, it follows that active-duty service military and their families are receiving less than adequate medical care.

VA Hospital v. Military Hospital Systems 

First, it is important to understand the difference between the VA Hospital and Military Hospital systems.  The difference can affect the injured patient’s rights to recover for medical malpractice.

The VA Hospital system is run through the Department of Veteran Affairs.  As the name and management suggest, the VA Hospital system was created to serve veterans.  Medical malpractice claims against VA Hospitals are governed by the rules under the Federal Tort Claims Act.

On the other hand, the Military Hospital system is run through the Department of Defense.  Military hospitals serve active-duty military and their families.  Because these hospitals are under the Department of Defense, there are special rules above and beyond the Federal Tort Claims Act.

Feres Doctrine 

The Feres Doctrine is a long-standing law that prohibits active-duty military from filing suit against the government for injuries suffered during service.  The prohibitions under the Feres Doctrine apply to medical malpractice claims against military hospitals.

In short, this means that an active-duty service member cannot sue for medical malpractice no matter how severe the medical negligence.  The Feres Doctrine is grossly unfair and disrespectful of our active-duty military.  Our military deserves better—but so long as the Feres Doctrine stands, they will not get it in medical services or in the courts following negligent medical care.  In fact, it might be argued that the Feres Doctrine itself contributes to the deficiencies in care since there are no consequences for errors even in case of gross negligence.

Feres Doctrine Does Not Apply to Family Members 

The above-discussion is clearly not good news for active-duty service members.  However, it should be noted that the Feres Doctrine applies only to active-duty military, not their spouses or children.

In light of the number of family members that are treated and the rates of medical error in the military hospital system, it is safe to say that many innocent spouses and children are harmed by negligent medical care.

For instance, the New York Times investigation found that 50,000 babies are born each year in the military hospital system.  Couple this with the fact that maternity care is one problem area of care and you have a recipe for disastrous and unnecessary harm to the service member’s spouse and children.

Federal Tort Claims Act Governs Claims by Family Members 

Unlike active-duty military, family members may bring claims against military hospitals under the Federal Tort Claims Act.  The Federal Tort Claims Act has a number of significant requirements and deadlines.

The deadlines on claims under the Federal Tort Claims Act are shorter than on claims against private medical providers.  Missing a deadline or failing to abide by other requirements under the Act will bar the claim completely.

Do Not Delay – Seek Legal Guidance 

Medical malpractice claims on the whole are quite complicated.  They can take months to evaluate.  In fact, it can take months to collect the necessary medical records to begin the evaluation process.

Because the deadlines are short on medical malpractice claims under the Federal Tort Claims Act, it is very important to contact an experienced medical malpractice attorney as soon as you believe you or a loved one has been harmed by medical negligence in a military hospital.

It is rarely if ever beneficial to delay.  Delay can be fatal to a claim—with a missed deadline barring the claim completely.

Waiting Time and Delays in Treatment Can Cause Serious Harm to PatientsThe recent revelations about the appointment waiting times suggest systemic medical negligence of Veteran patients.  This negligence has undoubtedly led to harm of many of the VA Hospital system’s veteran patients.

Likewise, there will likely be a wave of personal injury and wrongful death lawsuits associated with the systemic delays in treatment.

Possible Harm from Delayed Treatment

A report from April of this year from the Center for Investigative Reporting on wrongful death claims filed against the VA Hospital system since 9/11 illustrate the types of harm and possible claims that might arise from the negligent scheduling for Veterans for their medical appointments.

The report states that there have been 1000 wrongful death claims against the VA Hospital since 9/11 with total payouts of $200 million.  The Report rightly points out that these 1000 claims represent a very small percentage of the 6 million Veterans treated at the VA.

The report preceded the revelations about the extensive wait times for treatment.  The new light on the unacceptable wait times may very well bring to light many more wrongful deaths at the VA Hospital for which claims were not or have not yet been filed.  And again, for every death, there will many more cases of serious personal injury.

Types of Harm Caused by Delays in Treatment

There are innumerable ways that prolonged delays in treatment can harm patients.  This discussion addresses only what we believe will be the most likely types of claims.  There are many more and each individual case deserves individualized review.

Failure to Treat

The most obvious danger that might occur from delayed treatment is the failure to treat.  The simple fact is that many Veterans and patients generally, need immediate medical attention for their health issues.  Delays in treatment could in many cases result in serious personal injury or death.

There are far too many illnesses that might prove deadly in the event of delayed treatment to list here.  However, the fact that delays in diagnosis and proper treatment could result in death or personal injury is almost too obvious to even state.

Diagnostic Error

Diagnostic error kills as many as 80,000 Americans every year.  The VA Hospital is the largest provider of medical services in the country so it is safe to say that they are not immune from these numbers.

Diagnostic errors have many causes.  Many of these could result from extensive delays in treatment.  The most common diagnostic errors resulting from delays in treatment would likely be delays in diagnosis, failure to follow up on suspicious findings or other diagnostics, and missed diagnosis resulting from failures to schedule diagnostic focused appointments (x-rays, MRI’s, CT scans, biopsies, EKG’s and so on).

The harm associated with these diagnostic failures can be catastrophic in any medical setting.

Medication Errors

Like diagnostic errors, medication errors lead to thousands of deaths each year with estimates as high at 7000 deaths per year.  Moreover, it is estimated that 1.5 million Americans are harmed each year by medication errors with an average of one medication error per day per patient hospital day.

There are a number of ways that delays in treatment could result in medication errors and many of these are in fact common among medication errors.

Many of these errors and the personal injuries or wrongful death that might arise out of them could result from a failure to monitor mediations. The failure to monitor could lead to a variety of issues.  These might include a failure to measure effectiveness of the medications, failures to monitor possible dangerous drug interactions, failure to detect adverse side effects, failures to detect growing addictions and failures to monitor dangerous withdrawal upon the laps of medication.

There are certainly other ways that medication error and resulting harm could occur from delays in treatment.  And each of these could have catastrophic results to the Veteran patient.

Failure to Refer to Specialist

In New Mexico, there is a duty on doctors to refer a patient to a specialist where this is indicated.  A failure to do so could lead to very serious consequences for the patient.  This duty is no less important in the VA Hospital setting than any other.

A failure to refer could result from any of the above-mentioned cases of medical negligence.  In addition, the failure to refer might simply result from the fact that the Veteran was not seen in a timely manner so that the referral could not be made until it was too late to avoid harm or death.

Do Not Delay

These are only a few ways that delayed treatment might harm Veterans.  There are innumerable ways that delays in treatment could harm a patient.  They are too numerous to list.

If you or a loved one has been suffered serious harm as a result of delays in treatment at the VA Hospital, it is important to act in a timely manner.   Claims against the VA Hospital have a shorter 2-year statute of limitations that the 3-year deadline on claims against private medical providers.

Medical malpractice claims are complicated and can take months to evaluate.  The short statute of limitations on these claims can come up pretty quickly and delay may make is very difficult to find an attorney willing to take the case on at the last minute.

So do not delay seeking legal guidance.  Such a delay could bar your claims completely.

 The VA Hospital system has been under attack lately for their secret waiting lists.  These secret lists were allegedly used to gin up their productivity and quality of care numbers. A number of offending facilities have been identified.  Now the VA Hospital in Albuquerque has joined that list.

The Daily Beast article leads as with “Veterans with serious heart conditions, gangrene, and even brain tumors waited months for care at the Albuquerque VA hospital, a whistleblowing doctor tells The Daily Beast.”

Not Just an Outrage to Veterans, Systemic Medical Negligence

This news is astonishing on so many levels.  Beyond the fact that it is an outrageous insult to our nation’s Veterans, it is disgrace to the medical profession.  If true, it almost definitely constitute medical negligence giving rise to medical malpractice claims in the event of personal injuries or wrongful death arising out of these practices.

In fact, it seems safe to say that If the level of neglect reaches any where near the levels that the article suggest, there should be numerous medical malpractice claims against the Albuquerque VA Hospital arising out of what appears to be systemic medical negligence in the care of Veterans.

Destruction of Secret Waiting Lists and Medical Malpractice Claims

The Daily Beast article states that the a whistleblower inside the VA Hospital has reported that the VA has already begun destroying medical records which may make it will be very hard to determine just how many veterans were harmed by the delays in treatment.

The article suggests that the “secret wait list” in the Albuquerque VA Hospital has either been moved or destroyed as a result of the prior revelations of these same practices in the Phoenix facility.

The question that many Veterans and/or their loved ones will be asking is if the destruction of these lists will prevent them from making medical malpractice claims against the VA Hospital.  The answer is no, it will not.

An individual Veteran’s claims will be for neglect in his or her care not a broader claim for institutional negligence.  In other words, in case of medical malpractice in any individual case,  there will be sufficient evidence of neglect from a review of the individual Veteran’s medical records. Evidence of systemic negligence is just icing on the cake.

Medical Malpractice Claims Remain Whether or Not the Secret Lists are Destroyed

These folks should take heart in knowing that these practices will not jeopardize their claims. The fact is that there will be records of Veteran visits.  There will also be records of reported illness that necessitates medical attention and follow up.

The VA Hospital is held to the same standard of care as other medical providers.  The VA Hospital, its doctors, and other employees do not get a free pass on their duties and obligations to patients simply because they work for the VA Hospital.  One duty is the duty to maintain and preserve medical records.  These medical records are totally independent and separate from any “secret waiting lists”.

Potential Harm to Patients

There were reports out over the last several weeks regarding a number of wrongful deaths of Veterans related to the secret waiting list.  The Inspector General did get involved and apparently has not as of yet found any verified deaths from these horrendous medical practices.

So does it matter that the Inspector General has not yet verified any deaths related to VA Hospital neglect?  Not a bit!

Diagnostic Errors and Follow Up Care

The fact is that diagnostic errors are among the leading causes of death not just in medical malpractice but generally.  It is estimated that as many as 80,000 deaths per year occur as a result of diagnostic errors.

This includes failure to diagnose, delayed diagnosis, wrong diagnosis and failure to follow up with appropriate additional diagnostics and medical care.  These will all come up in the case of claims against the VA Hospital arising out of the delays and failures in the care of Veterans.

The fact that the Inspector General has not identified any deaths does not mean that deaths have not occurred or will not occur because of the VA Hospital’s neglect.  It most certainly does not mean that there have not and/or will not be serious, permanent, and potentially catastrophic injuries associated with the delays in treatment.

Medical Community Standards Apply to VA Hospital

There is a duty to properly and timely diagnose illnesses.  There is likewise a duty to follow up on any resulting diagnosis or other suspicious findings.  This really goes without saying.

The New Mexico Uniform Jury Instructions address these duties.  The doctors in the VA Hospital will be held to the standard of the medical community in New Mexico and specifically Albuquerque.

New Mexico Jury Instruction §13-1101 states:

In treating, operating upon, making a diagnosis of, and caring for a patient, the medical provider is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors other health care provider practicing under similar circumstances, giving due consideration to the locality involved. A doctor or other health care provider who fails to do so is negligent.

No Free Pass Because VA Hospital Systemically Neglects Patients

The key language beyond the general duties stated is “giving due consideration to the locality involved.”    This means the Albuquerque medical community in the particular area of medicine at issue.

It does not mean that a VA doctor will get a pass because he is part of a community that has systemically neglected their patients and therefore he or she should be held to no higher standard this his or her peers.

VA doctors and medical providers have the same duties of care as any other medical providers int he community with respect to  “treating, operating upon, making a diagnosis of, and caring for a patient”.

Protect Your Rights

Medical malpractice claims are difficult.  There are many fairly high burdens on the injured plaintiff to prove medical malpractice.  This is no different in the case of claims against the VA.

In addition to all the normal requirements for bringing a medical malpractice claim, there are additional requirements in case of claims against federal entities such as the VA Hospital.

The most important to know out of the gate is that there is a shortened statute of limitations on claims against the federal government under the Federal Tort Claims Act.

Do Not Delay!

The statute of limitations on these claims is only 2 years on claims against the VA Hospital.  Evaluation of medical malpractice claims can take months.

Because of the short statute of limitations and the time necessary to evaluate these claims, it is very important to contact an attorney immediately if you believe you or a loved one has been seriously harmed by the medical negligence of the VA Hospital system.

In addition to contacting an attorney to review your claims, Senator Tom Udall has set up a website for Veterans to report abuse and neglect in the New Mexico VA Health Care System.  Let your voice be heard and report to Senator Udall at www.tomudall.senate.gov/veterans/.  According to the site, your identity and any information provided will be kept “strictly confidential and secure”.